IMPORTANT JUDGMENTS FOR UPSC LAW OPTIONAL - PART II


SEXUAL HARASSMENT ALLEGATIONS AGAINST CHIEF JUSTICE OF INDIA - RANJAN GOGOI

WHAT HAPPENED ? On April 19 former junior Court Officer (complainant) sent affidavits to the judges of the Supreme Court accusing Justice Gogoi of sexual harassment. The complaint is specific, detailed and supported by documentary and other forms of evidence.


REACTION TO THE COMPLAINT :

1ST REACTION : Secretary General of the Supreme Court of India quickly discarding the complaint as one by “mischievous forces”.

2ND REACTION : The CJI himself constituted an extraordinary hearing in the Supreme Court, along with two other judges, on a non-working day in a case titled “Matter of great public importance touching upon the independence of the judiciary”. The complainant, in her absence, was defamed and her motives questioned.

3RD REACTION : The constitution of an “in-house” panel comprising three judges of the Supreme Court.

PRESENCE OF BIAS : How can judges inquire into allegations against a colleague, no less the CJI, who is the ‘master of roster’ assigning cases to fellow judges?

The so-called ‘In-House’ inquiry by three judges of the Supreme Court was in complete derogation of laws and norms on sexual harassment emanating from Vishakha and the POSH Act.

FINALLY :

• The finding of the panel that the allegations are baseless is the final blow in a process that has violated all principles of fairness, due process and impartiality.

• “The findings of the `In-House Committee’ seriously and grievously wounds one of the primary constructs of the rule of law, that justice should not only be done, `but seen to be done’.

• The committee had not provided any justification for not supplying a copy of the report to the complainant, which is a basic tenet of natural justice.

WAY FORWARD : The Chief Justice of India is not above the law. The judges of the Supreme Court must not reduce the institution to a private club where certain interests are safeguarded at the cost of judicial integrity.

  • Demands made by the complainant, such as a lawyer for representation and a committee under the provisions of the sexual harassment law, are bare necessity . In fact, they are a least minimum to uphold the promise of equality before law in the Constitution.

  • The manner in which the court dealt with the complaint on the administrative side has been less than fair. It is true that the in-house procedure devised in 1999 envisages only a committee of three judges to deal with allegations against serving Supreme Court judges. The fact that a special law to deal with sexual harassment at the workplace is in force since 2013 appears to have made no difference. The court could not bring itself, even in the interest of appearing fair, to adopt a formal procedure or allow the complainant to have legal representation.


DEBATING ON THE OTHER SIDE : The procedure that was being followed cannot be criticised as being either illegal or otherwise arbitrary. A procedure had to be devised as the circumstances were unique, without any precedent.

• The only guidance available was a ‘Report of the committee on in-house procedure (in brief “procedure”), drawn up by a meeting of the full court of the Supreme Court on December 15, 1999.

• The procedure specifically states that even in the case of an inquiry into a complaint received against a judge of the Supreme Court, the committee shall hold an inquiry on the same pattern as the committee constituted to examine a complaint against a judge of the High Court. Thus, the procedure does not contemplate the participation of a legal practitioner because it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses by lawyers. It has to be remembered that the committee was bound by the rules under which it has come into being, and though as per the report it is entitled to devise its own procedure (where certain parameters have been laid down in the in-house procedure), the same cannot be deviated from.


REPORT CANNOT BE REVEALED : A claim for a copy of the inquiry report will have to be turned down going by the law laid down by the Supreme Court in Indira Jaising v. Supreme Court of India & Anr [(2003) 5 SCC 494]. The report in the said case was made to the CJI and the report was confidential and discreet, only for the purpose of his information and not for disclosure to any other person.


NO DEVIATION IN PROCEDURE ESTABLISHED BY LAW : The procedure laid down in the in-house procedure has been adhered to in the present case. The law in Indira Jaising has also been adhered to. The complainant does have remedies in law. The principles of natural justice which are alleged to have been violated in the present case, by the refusal on part of the committee to afford the complainant a right of legal representation and the decision not to publish the report of the committee, do not and cannot have a straightjacketed approach. What has been done by the committee is in accordance with the procedure that is laid down.

CONCLUSION : The members of the committee are Supreme Court judges, comprising the seniormost judge of the Supreme Court and two women judges. Is not the fact that two of the members of the committee are women, one which would serve to make the complainant give her version in a more relaxed atmosphere? Is it right on our part to be sceptical about the propriety and correctness of the procedure followed by three Supreme Court judges, persons with unblemished reputations, in their character, conduct and integrity? A trust deficit would be counterproductive in these circumstances.


JUDGMENT 2 : INTERNATIONAL LAW : PAPER I : ICJ ADVISORY OPINION

FACT : The Sovereignty of Chagos Archipelago - disputed between UK & Mauritius.

TIMELINE OF THE EVENTS :

1965 – UK separated the archipelago from Mauritian territory & exercised its control.

1968 - Mauritius gained its independence from Britain & asked for the Chagos archipelago as well.

1968- 1973- UK & US – used the archipelago as a military base & entire population of chagossian was forcibly removed.

2015Permanent court of Arbitration unanimously held that the marine protected area (MPA) created by United Kingdom in Chagos Archipelago is violation of international law.

2017 - United Nations General Assembly sought ICJ’s Advisory opinion on this issue.

2019 – ICJ held that U.K. should relinquish the archipelago.

On 25 February 2019, the International Court of Justice (ICJ) ruled in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 that the United Kingdom should relinquish the archipelago.


ICJ JUDGEMENT – KEY TAKEAWAYS :

The Court concluded that “the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence” and that “the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible”.

Moreover, the Court noted that “the adoption of resolution 1514 (XV) represents a defining moment in the consolidation of State practice on decolonization” and that “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination”.

The Court concluded that, “as a result of the Chagos Archipelago’s unlawful detachment and its incorporation into a new colony, known as the [British Indian Ocean Territory] BIOT, the process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968”.


STANCE OF INDIA : MAY 23 2019 : India was among 116 nations to vote in favour of a UN General Assembly resolution that demanded the UK withdraw its “colonial administration” from the Chagos Archipelago unconditionally within six months, supporting Mauritius in its quest for the restoration of sovereignty over the island chain in the Indian Ocean.


BACKGROUND ON ICJ ADVISORY JURISDICTION :



WHO CAN SEEK FOR ADVISORY JURISDICTION ? It can be invoked by U.N. organs and specialized agencies under Art.65(1) of ICJ Statute.

IT IS MANDATORY FOR ICJ TO GIVE ADVISORY OPINIONS WHENEVER IT HAS BEEN SOUGHT? No. It is discretion of the ICJ. Article 65(1) stipulates that the Court ‘may give an advisory opinion … at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations’, leaving to the Court’s discretion the decision of whether to comply with the request or not.


RATIONALE OF THE DISCRETION : The discretion whether or not to respond to a request for an advisory opinion exists so as to protect the integrity of the Court’s judicial function as the principal judicial organ of the United Nations.

EXERCISE OF THE DISCRETION : ICJ has so far exercised this discretionary power carefully. It has refused to give opinions if a request has ‘compelling reasons’ not to give advisory opinions. The determination of what may constitute a ‘compelling reason’ is left to the careful evaluation of the judges on a case-by-case basis.

BINDING NATURE OF THE ADVISORY OPINIONS : It is non-binding in nature. It also depends on the internal rules of the requesting institution. It has juridical value. Advisory opinions are relied upon and cited as legal authority even in contentious cases.


UPSC POSSIBLE-QUESTIONS :
1. Discuss the summary of recent ICJ Judgement Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.
2. Explain the Advisory Opinion of ICJ along with recent opinions tendered by ICJ.

PAPER II : INDIAN PENAL CODE : TEMPORARY ‘REMOVAL’ OR TAKING PHOTOCOPIES OF ORIGINAL DOCUMENTS AMOUNTS TO THEFT - INDIAN PENAL CODE.

BIRLA CORPORATION LTD. VS. ADVENTZ INVESTMENTS AND HOLDINGS LTD. & OTHERS : MAY 2019 JUDGEMENT :


HELD : The Supreme Court held that “………To commit theft, one need not take movable property permanently out of the possession of another with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person though he intended to return it later on……..”.


Section 380 IPC - "Theft in dwelling house, etc.". In order to constitute theft, the following ingredients are essential:-

i. Dishonest intention to take property;

ii. The property must be moveable;

iii. It should be taken out of the possession of another person;

iv. It should be taken without the consent of that person;

v. There must be some removal of the property in order to accomplish the taking of it.


INTENTION : Intention is the gist of the offence. It is the intention of the taker which must determine whether taking or moving of a thing is theft.

• The intention to take "dishonestly" exists when the taker intends to cause wrongful loss to any other which amounts to theft.

• It is an essential ingredient of the offence of "theft" that the movable property should have been "moved" out of the possession of any person without his consent.


PRECEDENT :


CASE LAW 1 : In the light of the ratio laid down in Pyare Lal Bhargava vs State Of Rajasthan 1963 AIR 1094 , temporary removal of original documents for the purpose of replicating the information contained in them in some other medium would thus fulfill the requirement of “moving” of property which is the actus reus of the offence of theft as defined under Section 378 IPC.


WHY? Information contained in a document, if replicated, can be the subject of theft and can result in wrongful loss, even though the original document was only temporarily removed from its lawful custody for the purpose of extracting the information contained therein.


CASE LAW 2 : In the case of K.N. Mehra vs. State of Rajasthan AIR 1957 SC 369, this Court held that gain or loss contemplated need not be a total acquisition or a total deprivation but it is enough if it is a temporary retention of property by the person wrongfully gaining or a temporary keeping out of property from person legally entitled.


The observations are part of a 68-page judgment on the appeal filed by Birla Corporation alleging the theft of 54 documents by Adventz Investments and Holdings.



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